Lead Opinion
Petitioner Elliott McClain was convicted by a jury in the Circuit Court for Baltimore City of first degree murder and related offenses. At trial, the State offered into evidence an audiotape of a prior statement by a State’s witness, Sheila Billings, without explicitly offering at that time a theory for its admission. The trial court admitted that audiotape, among other items of physical evidence, saying that it was admissible as either a prior consistent statement or a prior inconsistent statement.
Petitioner asks us to decide whether the court erred in admitting the audiotape statement of Ms. Billings, given that the State did not offer the grounds for admission and the court did not make explicit findings regarding admissibility. We are also asked to decide whether the trial court erred in sending to the jury room during deliberations, absent a specific request from the jury, the audiotape statement of Ms. Billings and other prior audiotape statements that were admitted into evidence. For the following reasons, we hold that the trial court did not err in either respect.
I.
This case arises out of the death of Tidell Harris, who was shot during the early morning hours of June 1, 2004. The next day, Kerwayne Stanton was arrested on drug related charges. He informed the arresting officer that he had witnessed the shooting the previous night. The police transported Stanton to the police station, where he spoke with Detective Ron Ciraolo. Based on information that Stanton supplied, Detective Ciraolo prepared two photographic arrays. Stanton identified the photographs of the Petitioner, Elliott McClain, also known as “Goo” or “Gooh,” and Kevin Fletcher, known as “Pooh,” as depicting the two gunmen who shot Harris, known as “Popcorn” (hereafter, “the victim”). Stanton then provided a recorded statement of his account of the incident.
Several months later, Detective Ciraolo conducted an audio-taped interview of Sheila Billings. Billings told Detective Ciraolo that, on the night of the shooting, Petitioner and the victim were in the bar; the victim left about thirty minutes before Petitioner himself left the bar; then a girl ran into the bar and said that the victim had been shot, outside. The audiotape contains the following exchange between Detective Ciraolo and Billings:
[Ciraolo]: Um, Miss Billings, do you remember or can you remember after Gooh [Petitioner] left the bar about how much time went by before the girl came running back in saying that ah ...
[Billings]: Well, ah, when the girl ran in I believe that was before he left. Ah, it was about, now I might be wrong on this, it, it was either just right, right after she came in and said it or it was right before and I’m not real clear on that.
[Ciraolo]: Okay.
[Billings]: Okay, so I’m not so, I believe it was, no I’m . wrong. It was like thirty minutes. He left and it’s right before he was, that girl came in, when she ran in and said he was shot and he had left.
[Ciraolo]: So ...
[Billings]: And he never, he never came back.
[Ciraolo]: So he was already out of the bar ...
[Billings]: Right.
[Ciraolo]: when the girl came in ...
[Billings]: Right.
[Ciraolo]: and told you ...
[Billings]: That’s correct, yes.
[Ciraolo]: Okay, um, it’s a little confusion.
[Billings]: Right.
[Ciraolo]: Just to clarify, Popcorn [the victim] left ...
[Billings]: Yes.
[Ciraolo]: Gooh [Petitioner] left ...
[Billings]: Yes.
[Ciraolo]: Sometime after that the girl came in and said he was shot?
[Billings]: Right.
At trial, the State called Billings to testify about the events of June 1, 2004. Contrary to her audiotaped statement to Detective Ciraolo, in which she stated that Petitioner left the bar after the victim but before the report that the victim had been shot, Billings answered “yes,” when asked whether Petitioner was still in the bar when the girl ran in and said someone had been shot. The State then attempted to show Billings a transcript of her November 2004 interview with Detective Ciraolo, and, upon defense counsel’s request, the following bench conference took place:
[Defense]: Your Honor, I object to giving the witness anything to refresh her recollection. She testified to something, and she does not need the document to refresh her recollection for any purpose. She was asked a question, and she answered it.
[The Court]: Well, if she answered the question inconsistently or incorrectly with regard to her previous statement, the State can certainly put the statement in front of her, and see if that refreshes her recollection.
[Defense]: Very good. But there’s no foundation which would suggest that we needed that, Your Honor, so to allow her to review the document before that question is asked is problematic.
[The Court]: I disagree.
[Defense]: All right.
[The Court]: You all have had an opportunity to review the statement, I mean I assume — what’s your proffer, [State]? Why are you putting the statement in front of her?
[State]: She advised the police that Goo [Petitioner] left after Popcorn [the victim], and it was before the individual came in and said somebody had been shot.
[Defense]: The statement actually says that Goo [Petitioner] was in the bar. The statement says that Goo [Petitioner] was in the bar when the person came in, and then after police questioning she says, “Well, I don’t really recall which.” So it’s not a matter of whether or not she recalls as she is sitting here today; it’s a question of whether or not the State can show that the police managed to turn her statement around into something more ambiguous, and that’s inappropriate as a purpose for her reviewing this statement at this point in time, Your Honor.
[The Court]: Well what does the statement say, [State]?
[State]: Would you like a copy?
[The Court]: Sure.
(State hands document to the Court.)
[The Court]: And you direct me to what?
[State]: Well, really, the whole thing, but more towards the end, where they ask her—
[The Court]: Well, where?
[State]: On page 2, it said “Did somebody follow Popcorn out of the bar?” She said, “Goo.” As it goes on, there is one portion where she is unclear, however, she does ultimately say that Goo followed Popcorn out of the bar, and that Goo was not in the bar when the individual came in and said somebody had been shot.
[The Court]: Well this doesn’t say Goo followed Popcorn out of the bar. It says — thirty minutes afterwards?
[State]: That’s what she said initially, yes.
[The Court]: And your proffer is, that means that Goo followed Popcorn out of the bar because he left thirty minutes after Popcorn did?
[State]: My whole point in calling her is to show that you can’t hear the shots from the bar, and to show that the Defendant was not in the bar when the individual came in and said that Popcorn had been shot. Because as I’m sure Your Honor recalls from the Defendant’s statement, he said when the shots rang out, he heard them, and he was looking Ms. Sheila [Billings] in her face. However, in the statement to police, she stated that Goo was not in the bar when the individual came in and said somebody had been shot.
[The Court]: All right. I’m going to overrule the objection. She can look at her statement—
Billings reviewed the transcript of her statement to police and stated that it refreshed her recollection. She then testifled
Following Petitioner’s re-cross examination of Billings, the State moved to admit the taped statement into evidence, without specifying a basis for admission. Counsel for Petitioner entered a general objection, and the trial judge replied, simply, “Overruled. In it comes.” At that point, the audiotape was played for the jury.
After closing arguments, the trial court considered whether to send to the jury room the taped statements of Billings, Stanton (the arrestee who identified the photos of Petitioner and Fletcher as the men who were involved in the shooting), and Fletcher — the latter two of which also had been admitted into evidence.
The jury found Petitioner guilty of first degree murder, conspiracy to commit murder, and related handgun offenses. Petitioner appealed and the Court of Special Appeals affirmed the convictions in an unreported opinion. He then petitioned this Court for a writ of certiorari, which we granted, to answer the following questions:
1. Where a witness’s taped statement to police is offered and used for the purpose of refreshing recollection, may an appellate court affirm the admission of the tape into evidence under the theory that the statement was admissible as both a prior inconsistent statement and a prior consistent statement, where the prosecutor did not offer the statement under these hearsay exceptions, and where the trial court did not make the requisite findings of fact?
2. May a trial court, over defense counsel’s objection, send testimonial exhibits to the jury room at the beginning ofdeliberation where the jury did not ask to review those exhibits?
II.
Petitioner claims that the trial court erred in admitting Billings’s taped statement into evidence. He contends that the statement was used only to refresh Billings’s recollection, pursuant to Maryland Rule 5-612, and was inadmissible under that Rule. The State, however, does not argue that Billings’s statement was admissible under Rule 5-612. The State instead argues that Billings’s statement was admissible under Maryland Rule 5-802.1,
The State first produced the transcript of Billings’s prior statement, at trial, after Billings testified that Petitioner was in the bar when the woman entered and said the victim had been shot. During the ensuing bench conference, counsel for Petitioner objected “to giving the witness anything to refresh her recollection.” The court responded: “Well, if she answered the question inconsistently or incorrectly with regard to her previous statement, the State can certainly put the statement in front of her, and see if that refreshes her recollection.” (Emphasis added.) The State explained that it called Billings as a witness “to show that the Defendant was not in the bar when the individual came in and said that Popcorn had been shot ... [and] in the statement to police, [Billings] stated that Goo [Petitioner] was not in the bar when the individual came in and said somebody had been shot.” The court then overruled Petitioner’s objection, allowing Billings to review her prior statement. In short, the bench conference included references both to refreshing Billings’s recollection, and to the inconsistency between her initial testimony at trial and her statement to Detective Ciraolo.
When the State later offered Billings’s audiotaped statement into evidence, the court admitted the statement without articulating the basis for doing so. We reject the possibility that the court admitted the taped statement as a statement used to refresh recollection. Indeed, given the absence of any express ruling to the contrary, we readily can — and do— indulge the presumption that the trial court knew full well that the audiotaped statement was not admissible under a theory of refreshed recollection. See Germain v. State,
Petitioner seizes upon the statement we have just quoted to argue that the court incorrectly “lumped” together the audio-taped statements of Billings and Stanton by characterizing both as having been admitted into evidence as prior inconsistent and/or prior consistent statements. That mis-characterization, Petitioner claims, is the result of the State’s failure to provide a ground for admission of Billings’s taped statement. Petitioner, however, does not point to any evidence clearly suggesting that Billings’s statement was admitted under any Rule other than 5-802.1. In the absence of any such evidence proving otherwise, we take the trial court at its word.
We are equally convinced that the trial court admitted the audiotaped statement as a prior inconsistent statement under Rule 5-802.1(a). Indeed, the discussion among the court and counsel that preceded the court’s admission of Billing’s audio-taped statement reflects the court’s acceptance of the State’s proffer that the audiotaped statement would be inconsistent with Billings’s initial testimony. The next question, then, is whether the court correctly admitted Billings’s audiotaped statement under Rule 5-802.1(a).
In order to be admissible under section (a) of the Rule, the prior statement must be “inconsistent with the declarant’s testimony” and either: (1) made under oath at a qualifying proceeding; (2) made in writing and signed by the declarant; or, pertinent to the facts of this case (3) “recorded in substantially verbatim fashion by stenographic or electronic means contemporaneously with the making of the statement....” As for the former requirement, Billings told Detective Ciraolo that Petitioner had left the bar before the woman entered and said the victim had been shot. That is inconsistent with her initial testimony at trial that Petitioner was in the bar when the woman entered. As for the pertinent latter requirement, Billings’s prior statement was audiotape-recorded by the police during an interview with her; therefore, the audiotape offered by the State is “substantially verbatim,” recorded by “electronic means,” and “contemporaneous! ] with the making of the statement.” The prior statement, therefore, satisfies the requirements of Rule 5-802.1(a).
Petitioner argues that the statement was not inconsistent because, after being shown the statement to refresh her recollection, Billings amended her testimony to say that Petitioner left the bar before the woman entered; therefore, at the time the statement was admitted into evidence after recross examination, it was not inconsistent with the amended testimony. Petitioner’s argument incorrectly discounts Billings’s initial, unequivocal testimony that Petitioner did not leave the bar after the victim left but before the woman entered. That initial testimony, though
When a jury is presented with such conflicting testimony from a single witness, courts cannot speculate as to which side of the contradiction the jury will assign greater credibility. See Bellamy v. State,
Petitioner further argues that, even if the prior statement of Billings otherwise satisfied the requirements of Rule 5-802.1(a), the trial court erred by not making express findings, on the record, that those requirements were met. Speeifically, Petitioner interprets Rule 5-104(a) as demanding that such findings be made expressly before a prior statement may be admitted into evidence. The State disagrees, asserting that the language of Rule 5-104(a) contains no such requirement and pointing out that this Court in Davis v. State,
Rule 5-104(a) provides: “Preliminary questions concerning ... the admissibility of evidence shall be determined by the court....”
Unlike in Corbett, the facts of this case demonstrate that the trial court made a finding, albeit implicitly, on the admissibility of Billings’s audiotaped statement as a prior inconsistent statement. During the bench conference that preceded the court’s allowing the statement into evidence, the court itself inquired whether Billings testified “inconsistently or incorrectly” when compared with her prior statement, and evidently, based on the State’s proffer, found that the two were inconsistent. Later, the court announced that the audiotaped statement was admitted under Rule 5-802.1. The court’s comments certainly indicate, even if not expressly, that the court admitted the statement as a prior inconsistent statement under the Rule. We presume, moreover, that the court recognized its obligations to satisfy itself of the existence of the two prerequisites for admission of the statement under that Rule. See Davis,
The Court of Special Appeals in Corbett emphasized that “the decision whether a witness’s lack of memory is feigned or actual is a demeanor-based credibility finding that is within the sound discretion of the trial court to make,” and such a decision cannot be made “from the cold record.”
Finally, Rule 5-802.1, unlike some other Rules, does not require explicitly that findings be placed on the record, and we decline to read into the Rule such a requirement. See Powell v. State,
We hold that the trial court committed no error by admitting into evidence the taped recording of Billings’s prior statement to Detective Ciraolo.
III.
Next, Petitioner argues that the trial court erred when, at the beginning of the jury’s deliberations, the court sent to the jury room the audiotaped statements of Billings, Stanton, and Fletcher. Petitioner’s
Rule 4-326(b) provides that, “[ujnless the court for good cause orders otherwise,” jurors may take to the jury room “the charging document and exhibits that have been admitted in evidence, except that a deposition may not be taken into the jury room without the agreement of all parties and the consent of the court.” Section (c) of Rule 4-326 states that a court “may make available to the jury testimony or other evidence requested by it.” Recently, in Adams v. State, we explained the scope of sections (b) and (e):
We construe Rule 4-326(b) as meaning precisely what it says: that, “unless the court for good cause orders otherwise,” exhibits admitted into evidence may be taken to the jury room by the jury while it deliberates. For the Rule to have meaning apart from section (c), the “good cause” order must relate to specific exhibits and be made as to it or them prior to the jury being excused to deliberate.
Section (c) applies only where the request by the jury is for “testimony” or “other evidence,” not admitted as an exhibit, and not therefore permitted to accompany the jury to the jury room.
We decline to endorse Petitioner’s argument that the audio-taped statements are “depositions” for purposes of section (b). When interpreting the Maryland Rules, “if the language of a rule is clear and unambiguous, it will be applied thusly in a common-sense manner.” Brown v. Daniel Realty Co.,
Under Rule 2-414(a), a “deposition” conducted in Maryland “shall be taken before any person authorized to administer an oath.” In addition, under Rule 2-415(a), “[t]he deponent shall be put on oath by the officer before whom a deposition is taken....” In none of the three taped statements at issue was the witness placed under oath by anyone, let alone by a “person
Under Rule 4-326(b), “[ejxhibits admitted into evidence may go to the jury room absent some specific reason, i.e., good cause, to exclude them.” Adams,
In the present case, the trial court heard arguments from both sides before sending the audiotapes to the jury room. Defense counsel asserted that “it prejudices my client with the tapes being played repeatedly in the jury room without benefit of testimony.... They do not have that to deliberate with in the jury room and this tape that’s being pounded on these jurors over and over and over, it becomes problematic.” In subsequently ruling that the tapes would be provided to the jury, the court explained that “we’re not forcing the jurors to listen to the tapes. It’s as any other piece of evidence. It’s up there for their review should they choose to review it.” The court then highlighted other evidence that would be sent to the jury room along with the audiotapes, including exhibits submitted by the defense.
From this record, it is clear to us that the trial court considered and reasonably rejected the Defense’s argument concerning potential “good cause” for withholding the tapes from the jury. We therefore hold that the trial court did not abuse its discretion in sending to the jury room the taped statements of Billings, Stanton, and Fletcher.
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED; COSTS TO BE PAID BY PETITIONER.
Notes
. The taped statement by Stanton to the police was admitted as both a prior inconsistent statement and a prior consistent statement. Fletcher’s taped statement to police was admitted as a prior inconsistent statement. Petitioner does not challenge in this Court the admission of those two statements.
. Maryland Rule 4-326(b) provides:
(b) Items taken to jury room. Sworn jurors may take their notes with them when they retire for deliberation. Unless the court for good cause orders otherwise, the jury may also take the charging document and exhibits that have been admitted in evidence, except that a deposition may not be taken into the jury room without the agreement of all parties and the consent of the court. Electronically recorded instructions or oral instructions reduced to writing may be taken into the jury room only with the permission of the court. On request of a party or on the court’s own initiative, the charging documents shall reflect only those charges on which the jury is to deliberate. The court may impose safeguards for the preservation of the exhibits and the safety of the jury.
. Maryland Rule 5-802.1 provides, in relevant part:
The following statements previously made by a witness who testifies at the trial or hearing and who is subject to cross-examination concerning the statement are not excluded by the hearsay rule:
(a) A statement that is inconsistent with the declarant's testimony, if the statement was (1) given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition; (2) reduced to writing and was signed by the declarant; or (3) recorded in substantially verbatim fashion by stenographic or electronic means contemporaneously with the making of the statement;
(b) A statement that is consistent with the declarant's testimony, if the statement is offered to rebut an express or implied charge against the declarant of fabrication, or improper influence or motive.
. Because, as we shall discuss, the court committed no error in admitting the statement as a prior inconsistent statement under Rule 5-802.1(a), we do not address whether it also was admissible as a prior consistent statement under Rule 5-802.1(b).
. Maryland Rule 5-104(a) reads, in full:
(a) Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of section (b). In making its determination, the court may, in the interest of justice, decline to require strict application of the rules of evidence, except those relating to privilege and competency of witnesses.
. Maryland Rule 4-326(c) reads:
(c) Jury request to review evidence. The court, after notice to the parties, may make available to the jury testimony or other evidence requested by it. In order that undue prominence not be given to the evidence requested, the court may also make available additional evidence relating to the same factual issue.
Dissenting Opinion
dissenting.
The majority affirms the decision of the Court of Special Appeals, which, in this case, holds that an audio-taped statement, as transcribed, that is consistent with the witness’ trial testimony is nonetheless admissible as a prior inconsistent statement. I disagree and, therefore, dissent.
I.
The petitioner, Elliott McClain, was convicted, by a jury, in the Circuit Court for Baltimore City, of the first degree murder of Tidell Harris, conspiracy to commit that murder, and related handgun offenses. The convictions arose out of a shooting that occurred outside of Sooner’s Bar in Baltimore. Kerwayne Stanton, who had been arrested for possession of controlled dangerous substances, identified the petitioner, also known as “Goo”, and Kevin Fletcher, identified as “Pooh,” from photo arrays as the two men who shot Mr. Harris.
Unlike Mr. Fletcher, who, in an audio-taped statement, implicated himself and the petitioner in the shooting,
Detective Ciraolo subsequently interviewed Sheila Billings. She gave a statement, which was audio-taped, as follows:
“[Ciraolo]: Um, Miss Billings, do you remember or can you remember after Gooh [the petitioner] left the bar about how much time went by before the girl came running back in saying that ah ...
“[Billings]: Well, ah, when the girl ran in I believe that it was before he left. Ah, it was about, now I might be wrong on this, it, it was either just right, right after she came in and said it or it was right before and I’m not real clear on that.
“[Ciraolo]: Okay.
“[Billings]: Okay, so I’m not so, I believe it was, no I’m wrong. It was like thirty minutes. He left and it’s right before he was, that girl came in, when she ran in and said he was shot and he had left.
“[Ciraolo]: So ...
“[Billings]: And he never, he never came back.
“[Ciraolo]: So he was already out of the bar ...
“[Billings]: Right.
“[Ciraolo]: When the girl came in ...
“[Billings]: Right.
“[Ciraolo]: and told you ...
“[Billings]: That’s correct, yes.
“[Ciraolo]: Okay, um, it’s a little confusion.
“[Billings]: Right.
“[Ciraolo]: Just to clarify, Popcorn [the victim] left ...
“[Billings]: Yes.
“[Ciraolo]: Gooh [the petitioner] left ...
“[Billings]: Yes.
“[Ciraolo]: Sometime after that the girl came in and said he was shot?
“[Billings]: Right.”
At trial, the prosecution called Ms. Billings as a witness. She testified that she was familiar with both the petitioner, and Mr. Harris, the victim. She remembered the victim entering the bar on the night of the shooting, but not being permitted to stay, he left soon thereafter. She recalled, also, that the petitioner was present at Sooner’s Bar at that time. She then testified that, at a later point during the night, a girl ran into the bar and informed her that the victim had been shot; she had not heard the gunshots over the loud music in the bar. When asked whether the petitioner was still in the bar when the girl came in and informed her that the victim had been shot, she answered “yes,” stating that he was, indeed, present with a friend. That was contrary to her statement.
The State’s attempt to provide Ms. Billings with a transcript of her November, 2004 statement to refresh her recollection prompted the petitioner’s objection, resulting in a bench conference. At the bench, the following ensued:
“[Defense]: Your Honor, I object to giving the witness anything to refresh her recollection. She testified to something, and she does not need the document to refresh her recollectionfor any purpose. She was asked a question, and she answered it.
“[The Court]: Well, if she answered the question inconsistently or incorrectly with regard to her previous statement, the State can certainly put the statement in front of her, and see if that refreshes her recollection.
“[Defense]: Very good. But there’s no foundation which would suggest that we needed that, Your Honor, so to allow her to review the document before that question is asked is problematic.
“[The Court]: I disagree.
“[Defense]: All right.
“[The Court]: You all have had an opportunity to review the statement, I mean I assume — what’s your proffer, [State]? Why are you putting the statement in front of her?
“[State]: She advised the police that Goo [the petitioner] left after Popcorn [the victim], and it was before the individual came in and said somebody had been shot.
“[Defense]: The statement actually says that Goo [Petitioner] was in the bar. The statement says that Goo [Petitioner] was in the bar when the person came in, and then after police questioning she says, “Well, I don’t really recall which.” So it’s not a matter of whether or not she recalls as she is sitting here today; it’s a question of whether or not the State can show that the police managed to turn her statement around into something more ambiguous, and that’s inappropriate as a purpose for her reviewing the statement at this point in time, Your Honor.
“[The Court]: Well, what does the statement say, [State]?
“[State]: Would you like a copy?
“[The Court]: Sure.
(State hands document to the Court.)
“[The Court]: And you direct me to what?
“[State]: Well, really, the whole thing, but more towards the end, where they ask her — ■
“[The Court]: Well, where?
“[State]: On page 2, it said ‘Did somebody follow Popcorn out of the bar?’ She said, ‘Goo.’ As it goes on, there is one portion where she is unclear, however, she does ultimately say that Goo followed Popcorn out of the bar, and that Goo was not in the bar when the individual came in and said somebody had been shot.
“[The Court]: Well this doesn’t say Goo followed Popcorn out of the bar. It says — thirty minutes afterwards?
“[State]: That’s what she said initially, yes.
“[The Court]: And your proffer is, that means that Goo followed Popcorn out of the bar because he left thirty minutes after Popcorn did?
“[State]: My whole point in calling her is to show that you can’t hear the shots from the bar, and to show that the Defendant was not in the bar when the individual came in and said that Popcorn had been shot. Because as I’m sure Your Honor recalls from the Defendant’s statement, he said when the shots rang out, he heard them, and he was looking Ms. Sheila [Billings] in her face. However, in the statement to the police, she stated that Goo was not in the bar when the individual came in and said somebody had been shot.
“[The Court]: All right. I’m going to overrule the objection. She can look at her statement — ”
Following this exchange, the petitioner’s cross-examination, and subsequent questioning by the parties, the State moved, without specifying a basis for admission, to admit Ms. Billings’ statement into evidence. The petitioner’s objection was overruled, the trial judge ruling, simply, “[i]n it comes.” Thereafter, the audio-tape of the statement was played for the jury. At the conclusion of the trial, the court approved sending the audio-taped statement to the jury room. In so doing, the trial court concluded that the statements “were offered into evidence by the State pursuant to Maryland Rule 5-802.1(a) and/or (b),”
The petitioner noted an appeal to the Court of Special Appeals. There, he argued, inter alia, that in accordance with Maryland Rule 5-612,
The petitioner filed with this Court a petition for writ of certiorari, asking that we answer the following question:
“Where a witness’s taped statement to police is offered and used for the purpose of refreshing recollection, may an appellate court affirm the admission of the tape into evidence under the theory that the statement was admissible as both a prior inconsistent statement and a prior consistent statement, where the prosecutor did not offer the statement under these hearsay exceptions, and where the trial court did not make the requisite findings of fact?”
The majority affirms the decision of the Court of Special Appeals. Like that court, it holds that the trial court correctly admitted Ms. Billings’ statement, audio-tape and transcript, as a prior inconsistent statement, pursuant to Maryland Rule 5-802.1(a). Op. at 247-48,
To the petitioner’s contention that the Billings statement could not have been admitted as a prior inconsistent statement because, at the time it was admitted, Ms. Billings’ trial testimony was consistent with her statement, and although she had testified inconsistently on one occasion, and in only one particular, once her recollection was refreshed, she changed her testimony such that it mirrored what was contained in her audio-taped statement, the majority responds that the jury could still have been influenced by her earlier testimony that Mr. McClain was still in the bar when the girl ran in and informed her
I believe that it was improper, after the transcript of Ms. Billings’ statement had sufficiently refreshed her recollection, for the audio-tape of that statement to be admitted as evidence.
II.
The trial court erred when it admitted the audio-tape of Ms. Billings’ statement into evidence because it did not qualify for admission under any of the hearsay exceptions. Clearly, it could not be admitted under Rule 5-612; after Ms. Billings’ recollection had been refreshed, it failed to meet the requirements of that rule — it was not offered “for the limited purpose of impeaching the witness as to whether the item in fact refreshed the witness’s recollection.” Nor could it be admitted, contrary to the holding of the majority, under Rule 5-802.1(a) — it simply was not offered and, therefore, could not have been admitted as a prior inconsistent statement. Hearsay, defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted,” Md. Rule 5-801, “is not admissible” unless “otherwise provided by these rules or permitted by applicable constitutional provisions or statutes.” Md. Rule 5-802. Ms. Billings’ statement is hearsay. The Maryland Rules provide that such statements, or a portion of them, may be admissible under some circumstances. Rule 5-612, for example, permits a witness, for the State or any party, to use a hearsay statement, in writing, to refresh the recollection of the witness. Should the statement be so used, it is nevertheless inadmissible as evidence, unless those portions that relate to the testimony are introduced “for the limited purpose of impeaching the witness as to whether the item in fact refreshes the witness’s recollection.” Md. Rule 5-612. That is not this case.
Maryland Rule 5-802.1 enunciates five (5) exceptions to this Hearsay Rule, pertaining to prior witness statements, two (2) of which are relevant to the issue in this case. Section (a) permits the admission of a hearsay statement, “reduced to writing and ... signed by the declarant,” that is “inconsistent with the declarant’s testimony” and was, as relevant here, “recorded in substantially verbatim fashion by stenographic or electronic means contemporaneously with the making of the statement.” Under Section (b), a prior consistent statement,
The majority’s holding that Ms. Billings’ audio-taped statement was admitted into evidence pursuant to Rule 5-802.1(a), overlooks all indications to the contrary in the record. It also overlooks an incontrovertible fact, that, at the end of the day, when all is said and done, there was no inconsistency between Ms. Billings’ trial testimony and her audio-taped statement. The prosecutor made clear what he hoped to prove with Ms. Billings’ testimony:
“My whole point in calling her is to show that you can’t hear the shots from the bar, and to show that the Defendant was not in the bar when the individual came in and said that Popcorn had been shot. Because as I’m sure Your Honor recalls from the Defendant’s statement, he said when the shots rang out, he heard them, and he was looking Ms. Sheila [Billings] in her face. However, in the statement to the police, she stated that Goo was not in the bar when the individual came in and said somebody had been shot.”
While she admittedly testified inconsistently when first asked about the petitioner’s whereabouts at the critical time, after her recollection had been refreshed, her testimony reflected no such inconsistency. Indeed, it mirrored the statement on the critical facts, whether gunshots from outside could be heard inside the bar and the petitioner’s whereabouts when the shots were fired.
To begin, we look to how the issue arose. Even a cursory review of the facts underlying this case clearly demonstrates that the State’s purpose in showing the transcript of her statement to the witness was solely to refresh her recollection, something clearly allowed under, and indeed contemplated by, Rule 5-612. Armed with Ms. Billings’ statement that the petitioner was not in the bar when she learned that the victim had been shot, the prosecutor expected her to testify consistently. When she did not, and, in fact, testified that the petitioner was in the bar with a friend, obviously surprised, the prosecutor responded:
“I’m going to show you what I have pre-marked for identification purposes as State’s Exhibit Number 5. Can you take a moment and read through that to yourself and tell me if that refreshes your recollection about what occurred that morning of June 1st, 2004.” (emphasis added).
It is significant that, notwithstanding the contradiction in her testimony, the prosecutor did not accuse Ms. Billings of fabricating testimony, or recanting her statement; rather, he apparently attributed it, with good reason, as subsequent events proved, to the ambiguity of the statement, and to her being unable to recollect clearly. This initial use of the transcript, after Ms. Billings offered testimony that indicated some difficulty recalling the events on the night of the shooting, without anything further, establishes the purpose for which the State sought to use her out of court statement. The petitioner’s objection is consistent. It was to the State’s refreshing the witness’ recollection. It and the bench conference it precipitated, focused not on the inconsistency of the witness’ testimony, but on the necessity of its being refreshed and the use of her prior statement for that purpose:
“[Defense]: Your Honor, I object to giving the witness anything torefresh her recollection. She testified to something, and she does not need the document to refresh her recollection for any purpose. She was asked a question, and she answered it.
“[The Court]: Well, if she answered the question inconsistently or incorrectly with regard to her previous statement, the State can certainly put the statement in front of her, and see if that refreshes her recollection.”
(emphasis added).
To be sure, the inconsistency of Ms. Billings’ trial testimony, at that point, and the witness’ prior statement was noted, but it was done in the context of what was before the court for decision, whether to allow the State to use the statement to refresh the witness’ recollection. The trial court was the first to reference the inconsistency, and the manner in which it did so is quite instructive, stating: “Well, if she answered the question inconsistently or incorrectly with regard to her previous statement, the State can certainly put the statement in front of her, and see if that refreshes her recollection.” The trial judge thus recognized inconsistency in a witness’ trial testimony and a previously given statement as a basis for seeking to refresh the witness’ recollection. The subsequent discussion by the State, to the extent that it referenced the inconsistency between the testimony and statement, was in the same context and to same effect — seeking leave to use the statement to refresh the witness’ recollection. Most important, the relief given by the court was what the State sought; the witness was allowed to “look at her statement.” It is also relevant that, having been shown the transcript of the statement, the witness responded to the State’s inquiry, “[d]oes that refresh your recollection?,” “[y]es, it does.” (emphasis added). She confirmed that response, on cross-examination, when the defense counsel showed her the statement a second time.
Of course, the State did not move the witness’ statement into evidence. Indeed, it could not. It had received the ruling it sought and, as a result, as we shall see and explore more fully, recollection having been refreshed, the witness’ testimony at trial on the point making refreshment of the witness’ recollection necessary was modified so that it was consistent with her prior statement. The petitioner could have, but did not, offer the statement, or any portion of it, to impeach Ms. Billings’ testimony that her recollection was refreshed. Rather, he merely sought to note a continuing objection to the “introduction” of the document to refresh the witness’ recollection. To be sure, the petitioner attacked Ms. Billings’ reliability — credibility—as a witness, pointing out the inconsistency and ambiguity in her statement and emphasizing the initial inconsistency of her trial testimony with that statement; however, despite that attack, Ms. Billings continued to testify consistently with her refreshed recollection.
It was only after Ms. Billings had been examined on direct, cross, re-direct, and re-cross, that the State offered her audio-taped statement into evidence. It did so despite the fact that, on the critical points, as identified by the State, Ms. Billings’ testimony at trial and her audio-taped statement were totally consistent. To reiterate and emphasize, to be sure, on direct, she testified inconsistently on one point, but when her recollection was refreshed by reading her statement, she amended her testimony and, thereafter, testified entirely consistently with the statement.
III.
The majority holds that the audio-taped statement was offered and properly admitted into evidence pursuant to Rule 5-802.1(a).
When interviewed by Detective Ciraolo, Ms. Billings explained, in a somewhat confused manner, her recollection of events on the night of the shooting. She first stated that the petitioner was still in the bar when a girl ran in and informed her that the victim had been shot. She then equivocated, eventually amending her response to say that the petitioner had actually left the bar prior to her learning of the shooting. The detective clarified the sequence of events by a series of questions, the answers to which indicated that the victim left, the petitioner left, and then the girl reported the shooting. While being questioned by the State at trial, Ms. Billings testified to a different sequence — that the petitioner was still in the bar when the girl reported the shooting. This was clearly inconsistent with her statement. Therefore, in accordance with Rule 5-802.1(a), had she persisted in testifying inconsistently, the State could have impeached her with her prior inconsistent statement, and offered it into evidence. That, however, is not what occurred. Instead, the State, in accordance with Rule 5-612, over the petitioner’s objection, showed Ms. Billings the transcript of her statement, which refreshed her recollection. Her recollection thus refreshed, Ms. Billings did not persist in testifying inconsistently; rather, she amended her prior trial testimony with regard to the petitioner’s whereabouts when the shooting was reported and thereafter continued to testify in accordance with the audio-taped statement. Consequently, there were no grounds for admission of the statement under Rule 5-802.1(a).
Holding the statement to be correctly admitted as a prior inconsistent statement, despite the witness’ amendment of her testimony, after her recollection has been refreshed, is not only factually incorrect, but it contravenes the purpose of Rule 5-802.1(a). See Stewart v. State,
IV.
The Court should have overturned the holding of the Court of Special Appeals, and concluded that the trial court committed error when it admitted the audio-taped statement of the witness as substantive evidence subsequent to the witness’ recollection already being refreshed, and there being no preliminary findings establishing that it was, in fact, admissible under any exception to the hearsay rule.
I dissent.
. At trial, Mr. Fletcher recanted his statement. He acknowledged that he had entered into a plea agreement with the State, but testified that he did not remember seeing the petitioner on the date of the incident, and, furthermore, that he did not even remember being present outside of Sooner's Bar on the date of the shooting. Mr. Fletcher conceded that the information he had provided to Detective Ciraolo had been fabricated, but maintained that it was because the detectives had promised him a reduced sentence in exchange for a statement implicating himself and the petitioner in the shooting. In addition, he stated, that he had been assaulted by the officers that took him into custody, prior to making his audio-taped statement, and also, that he was denied the opportunity to speak to his mother, or to an attorney, upon request.
. Maryland Rule 5-802.1 provides, in relevant part, that "[t]he following statements previously made by a witness who testifies at the trial or hearing and who is subject to cross-examination concerning the statement are not excluded by the hearsay rule”:
"(a) A statement that is inconsistent with the declarant’s testimony, if the statement was (1) given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition; (2) reduced to writing and was signed by the declarant; or (3) recorded in substantially verbatim fashion by stenographic or electronic means contemporaneously with the making of the statement;
"(b) A statement that is consistent with the declarant’s testimony, if the statement is offered to rebut an express or implied charge against the declarant of fabrication, or improper influence or motive....”
. Maryland Rule 5-612 states:
"If, while testifying, a witness uses a writing or other item to refresh memory, any party is entitled to inspect it, to examine the witness about it, and to introduce in evidence those portions which relate to the testimony of the witness for the limited purpose of impeaching the witness as to whether the item in fact refreshes the witness's recollection.”
. This Court also granted certiorari to address a second question:
"May a trial court, over defense counsel's objection, send testimonial exhibits to the jury room at the beginning of deliberation where the jury did not ask to review those exhibits?”
The petitioner argues that sending those tapes to the jury room violated Rule 4-326, which provides, in relevant part:
"(b) Items taken to jury room. Sworn jurors may take their notes with them when they retire for deliberation. Unless the court for good cause orders otherwise, the jury may also take the charging document and exhibits that have been admitted into evidence, except that a deposition may not be taken into the jury room without the agreement of all parties and the consent of the court. Electronically recorded instructions or oral instructions reduced to writing may be taken into the jury room only with the permission of the court. On request of a party or on the court’s own initiative, the charging documents shall reflect only those charges on which the jury is to deliberate. The court may impose safeguards for the preservation of the exhibits and the safety of the jury.
"(c) Jury request to review evidence. The court, after notice to the parties, may make available to the jury testimony or other evidence requested by it. In order that undue prominence not be given to the evidence requested, the court may also make available additional evidence relating to the same factual issue.”
The petitioner asserts this violation on the grounds that, first, taped statements could be considered depositions which, under the rule, may not be sent to the jury room, and, second, because the jury did not request the tapes in accordance with Rule 4-326(c). In this regard, also, the majority holds that the trial court did not err because "Rule 4-326 presumes all exhibits in evidence, except for depositions, may go to the jury room unless 'good cause' exists to withhold them from the jury,” and, furthermore, that the tapes cannot be considered "depositions” within the meaning of the rule. Op. at 253-55,
. Maryland Rule 5-104(a) provides:
"Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of section (b). In making its determination, the court may, in the interest of justice, decline to require strict application of the rules of evidence, except those relating to privilege and competency of witnesses.”
. In offering Ms. Billings’ audio-taped statement, the State said only: “I would ask that State’s Exhibit 5A, the tape of this statement be moved into evidence.” The petitioner's objection was overruled, the court's entire ruling being, “[i]n it comes." The only insight we have as to the basis for both the offer and the admission is supplied by reference to the examination of Ms. Billings, whose statement is at issue. Review of that portion of the proceedings reveals not a word, alter Ms. Billings’ recollection had been refreshed, that would indicate that the State believed that her trial testimony was inconsistent with her audio-taped statement. Even when Ms. Billings testified differently from her statement, the State did not seek to impeach her testimony as inconsistent. Instead, it sought to use her statement to refresh her recollection. After the court overruled the petitioner’s objection to its use of the statement for that purpose, it simply showed her the statement, and, as it had apparently assumed, that did the trick. To be sure, the inconsistent trial statement, the predicate for the ruling that the State could use the witness' statement to refresh recollection, was referenced by the petitioner in cross-examination, as were the ambiguities and inconsistencies in the witness' audio-taped statement, but not to establish an inconsistency between trial testimony and the witness’ prior statement. They were referenced, rather, to undermine her reliability as a witness.
The majority is simply wrong in its conclusion that the trial court did not err when it failed to make required preliminary findings that would bring the audio-taped statement under Rule 5-802.1. Rule 5-104(a) provides, in relevant part, that “[preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court....” Accordingly, we have recognized that “the court’s duty is to determine whether such preliminary facts exist to support the admissibility of evidence.” Crane v. Dunn,
The majority infers from the trial judge’s reference to “inconsistency” during the bench conference on the petitioner's objection to the witness’ recollection being refreshed, "inquir[ing] whether [the witness] testified 'inconsistently or incorrectly' when compared to her prior statement,” that these findings were made. Op. at 252,
The inconsistency finding was a limited "finding,” if a finding at all, as I have pointed out, supra, and as the transcript of the bench conference makes clear. In context, as we have seen, the trial court said:
"Well, if she answered the question inconsistently or incorrectly with regard to her previous statement, the State can certainly put the statement in front of her, and see if that refreshes her recollection.”
Moreover, the argument that flows from it is not persuasive. The context in which the "inconsistent” reference was made was, as indicated, during a bench conference prompted by the petitioner’s objection to the State's use of the witness’ prior statement to refresh her recollection; that was the focus of the discussion, not whether her testimony was inconsistent with her statement. That there was inconsistency was clear, what was not clear was the reason for it, whether it was intentional or the product of faulty memory. That question was resolved by allowing the State to refresh the witness’ recollection, the very antithesis of impeaching with a prior inconsistent statement.
The majority misapplies Rule 5-104(a). I submit that it is not sufficient for the trial court to make preliminary findings of fact without indicating in the record what they are, what findings have been made and are being relied on. The petitioner is correct when he proffers that "the trial court did not make any of the preliminary findings of fact required under Md. Rule 5-802.1(a)....” (Brief of petitioner, 19.) Drawing an inference, in this regard, is even more problematic when, as here, the record is clear that the only issue addressed by the court was the permissibility of using a prior statement to refresh recollection, a matter implicating only Rule 5-612.